행정소송에서 사실상 조정ㆍ화해의 법적 근거와 관련된 재논의

In recent years, as remarkably seen, there has been more and more interest in Alternative Dispute Resolution (außergerichtliche Streitbeilegung) in the administrative law as well as in the civil law. It is the means by which to settle the dispute without resorting to lawsuit. In this paper, I will focus only on the settlement in court by the recommendation for mediation, which corresponds to the court-led alternative dispute resolution system without a lawsuit. Hence, I will not discuss the alternative dispute resolution system arranged in the administrative organs. In terms of the court-led mediation, there has already been a discussion on the legal grounds for ‘de facto Mediation and Settlement’, which has actually been put into practice in courts. The present administrative litigation act includes no clear written provision about mediation; nevertheless, in practical terms, mediation brings a dispute into resolution in the process of a lawsuit or the legal proceedings. Although there was a provision for settlement in court in Article 35 of the tentative draft for the revised administrative litigation act proposed by Ministry of Justice in 2012, the proposed draft of the revised administrative litigation act in the pre-announcement of legislation on 20th Mar 2013 excluded the system of settlement in court by the court decision of recommendation (the recommendation for settlement by virtue of the authority of court). Therefore, it is required to revisit the matter of whether the settlement in court in the code of civil procedure(the Civil Procedure Code; CPC) may be applied even in the case of the administrative litigation. Under the circumstances where the system has yet to be legalized as mentioned above, I will scrutinize the theories in Korea as to the acceptability in the administrative litigation of the settlement in court, stipulated in the Civil Proceedings Act, with a view to rearranging them. Also, I will describe the relevant legal characteristics of court decision for settlement and the specified terms according to their limitations, etc. By doing so, I insist that the clear legal grounds about de facto mediation and settlement, which have already been settled as the customary practice, should be written in the revised version of Administrative Litigation Act. Henceforth, first of all, I will carefully review the theories on the acceptability of settlement in court, stipulated in the Civil Proceedings Act, in the administrative litigation. In addition, I will examine the discussion as to the legal grounds for de facto mediation and settlement especially in appeal litigation, from the point of view in the theories that admit the acceptability. Also, I will demand that the clear applicable provisions should be established in case of the revision of administrative litigation act under the circumstances that there are such legal characteristics and limitations in de facto mediation and settlement. As the relevant provisions for settlement by the court decision of recommendation are introduced in the administrative litigation, mediation based on the clear legal grounds can be expected. I stress that the legalization of the system of recommendation for settlement by the court decision even in the revision of Administrative Litigation Act may function as the ground that the mediation system can be introduced in the administrative cases. For mediation is based on a premise that in the administrative litigation there may be a settlement between the parties in dispute. In this respect, in order to confirm and prepare the clear legal grounds for de facto mediation and settlement in actual practice, I will demand that the recommendation for settlement by the court decision should be newly introduced in administrative litigation acts, and I can summarize the relevant issues as follows:First, I admit that settlement in court is a legal action as well as a contract in public law, which has dual characteristics . It is also the commonly accepted view in Germany. Therefore, even in case where there is no legally binding effect of the contract of settlement due to some procedural factors, the substantial contents in the contract of settlement may be valid. Second, when the relevant facts or legal conditions are clear, or in case of legally binding acts, the settlement in court should basically be excluded. Third, since parties should bear an authority to dispose the object of a lawsuit, the settlement in which the party such as the administrative agency has no jurisdiction is null and void. In addition, the contents of settlement must not violate the strictly enforced laws. In Japan, even though the provisions for settlement have not been legalized yet, Article 52 (Settlement) in 「Administrative Litigation Acts 行政訴訟法案」, proposed on 13th Mar 2003 by Japan Federation of Bar Associations stipulates that “parties may come to settlement in court in order to resolve the claims in part or in entirety by administrative rulings, as long as it is not against the laws or regulations.”Fourth, I will discuss the objects and contents of recommendation for settlement by court decision. Considering that the administrative litigation may function as a remedy for violation of private right and may control the legality of administration, the objects of recommendation for settlement by court decision should be confined to those in case when the measures by the administrative agencies abuse their authorities in taking measures, when their measures are ultra-vires acts, or when the procedural flaws may be corrected. Also, the contents in the recommendation should not be beyond the legal limitations. I fully agree with this opinion. Furthermore, it is recommendable that the various options for settlement to be taken should be presented or that in case of the abuse of power, the scope where it has been abused should be written in the reasons for recommendation for settlement. So, it is advisable that the administrative agencies should suggest the autonomous and voluntary options based on the written documents, so that they may negotiate with the complainants for the mutual agreement. Finally, as I personally think thanks to the previous studies, I could summarize things for the revisited consideration about how the legal grounds for settlement in court can be established in the administrative litigation acts as follows:1) Above all, as stipulated in the old act, Article 8 Section 2 in the present administrative litigation act should be specified in such a way that “unless otherwise specified, the articles and sections shall be in accordance with what is stipulated in Court Organization Act and Civil Proceedings Act.”2) The description of recommendation for settlement by the court decision in the limited terms as newly introduced in Article 35 of the revised draft in 2012 by Ministry of Justice should be more specified so as to be confined to “the framework within which the accused administrative agencies may have their discretionary power and the objects may not be involved with the affairs beyond their authority” So, I expect that the legalization of such things in the revision of Administrative Litigation Act may contribute more or less to the establishment of clear legal grounds for settlement in court by the court-led recommendation for mediation, that is, the de facto mediation and settlement in actual practice.